Citation Nr: 0032284
Decision Date: 12/11/00 Archive Date: 12/20/00
DOCKET NO. 91-50 083 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama
THE ISSUES
1. Entitlement to an effect dated earlier than October 18,
1997 for the award of a separate 10 percent rating for a scar
on the dorsal aspect of the left foot between the 4th and 5th
metatarsals.
2. Entitlement to a higher initial evaluation for post-
traumatic stress disorder, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Sabrina M. Tilley, Counsel
INTRODUCTION
The veteran served on active duty from June 1966 to January
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from February 1999 and March 2000 rating
decisions. The issue of entitlement to a higher initial
rating for PTSD is discussed in the REMAND that follows this
decision.
FINDINGS OF FACT
1. All relevant evidence necessary for a fair and informed
decision has been obtained by the originating agency.
2. The date of the veteran's formal claim for an increased
rating was in August 1989, and there is no indication in
statement or medical record of the preceding one-year period
that would indicate an intention to file for a claim for an
increase.
3. The date at which it was factually ascertainable that the
veteran had a tender scar on the dorsal aspect of the left
foot between the 4th and 5th metatarsals was October 18, 1997,
during VA examination.
CONCLUSION OF LAW
The criteria for an effective date earlier than October 18,
1997 for the award of a separate rating for a tender scar on
the dorsal aspect of the left foot between the 4th and 5th
toes have not been satisfied. 38 U.S.C.A. §§ 1155, 5107,
5110, 7104 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.151,
3.155, 3.157, 3.400, 4.71a, Code 5257 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Except as otherwise provided, the effective date of the award
of an evaluation based on an original claim, a claim reopened
after a final disallowance, or a claim for an increase will
be the date of receipt of the claim or the date entitlement
arose whichever is later. 38 U.S.C.A. § 5110;
38 C.F.R. § 3.400.
However, among the listed exceptions to the general rule
stated above is the rule that applies to increases in
disability compensation. The effective date of such an
increase will be the earliest date as of which it is
factually ascertainable that an increase in disability had
occurred if the claim is received within one year from such
date, otherwise the effective date will be the date the claim
is received or the date entitlement to the benefit arose,
whichever is later. 38 C.F.R. § 3.400(o).
The United States Court of Veterans Appeals (now the United
States Court of Appeals for Veterans Claims, hereinafter the
Court) has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. §
3.400(o)(2) are applicable only where an increase in
disability precedes a claim for an increased disability
rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1)
applies. See Harper v. Brown, 10 Vet App 125, 126 (1997).
Thus, three possible dates may be assigned depending on the
facts of the case:
(1) if an increase in disability occurs
after the claim is filed, the date that
the increase is shown to have occurred
(date entitlement arose) (38 C.F.R. §
3.400(o)(1));
(2) if an increase in disability precedes
the claim by a year or less, the date
that the increase is shown to have
occurred (factually ascertainable) (38
C.F.R. § 3.400(o)(2));
(3) if an increase in disability precedes
the claim by more than a year, the date
that the claim is received (date of
claim) (38 C.F.R. § 3.400(o)(2)).
Harper, supra. I find that for the reasons and bases set
forth below, that the veteran's case falls under the first
scenario of the Harper test, as the date entitlement arose
post-dated the date of the veteran's claim.
Determining an appropriate effective date for an increased
rating under the effective date regulations involves an
analysis of the evidence to determine (1) when a claim for an
increased rating was received and, if possible, (2) when the
increase in disability actually occurred. 38 C.F.R. §§ 3.155,
3.400(o)(2). The initial inquiry involves ascertaining the
date of the claim. A specific claim in the form prescribed
by the Secretary must be filed in order for benefits to be
paid to any individual under the laws administered by VA.
38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151.
Any communication or action indicating an intent to apply for
one or more benefits under the laws administered by VA from a
claimant may be considered an informal claim. Such informal
claim must identify the benefit sought. Upon receipt of an
informal claim, if the formal claim has not been filed, an
application form will be forwarded to the claimant for
execution. If received within one year from the date it was
sent to the claimant, it will be considered filed as of the
date of the receipt of the informal claim. When a claim has
been filed which meets the requirements of § 3.151, an
informal request for increase or reopening will be accepted
as a claim. 38 C.F.R. § 3.155. A report of examination or
hospitalization will be accepted as an informal claim for
benefits, if the report relates to a disability which may
establish entitlement. 38 C.F.R. § 3.157.
A report of examination or hospitalization which meets the
requirements of 38 C.F.R. § 3.157 will be accepted as an
informal claim for benefits, if the report relates to a
disability which may establish entitlement. Once a formal
claim for compensation has been allowed, receipt of one of
the following will be accepted as an informal claim for
increased benefits: (1) Report of examination or
hospitalization by VA or uniformed services. The date of
outpatient or hospital examination or date of admission to a
VA or uniformed services hospital will be accepted as the
date of receipt of a claim, only when such reports relate to
examination or treatment of a disability for which service-
connection has previously been established or when a claim
specifying the benefit sought is received within one year
from the date of such examination, treatment or hospital
admission. (2) Evidence from a private physician or layman.
The date of receipt of such evidence will be accepted when
the evidence furnished by or in behalf of the claimant is
within the competence of the physician or lay person and
shows the reasonable probability of entitlement to benefits.
(3) State and other institutions. When submitted by or on
behalf of the veteran and entitlement is shown, date of
receipt by VA of examination reports, clinical records, and
transcripts of records will be accepted as the date of
receipt of a claim if received from State, county, municipal,
recognized private institutions, or other Government
hospitals (except those described in 38 C.F.R.
§ 3.157(b)(1)). These records must be authenticated by an
appropriate official of the institution. Benefits will be
granted if the records are adequate for rating purposes;
otherwise findings will be verified by official examination.
Reports received from private institutions not listed by the
American Hospital Association must be certified by the Chief
Medical Officer of the Department of Veterans Affairs or
physician designee. 38 C.F.R. § 3.157.
The Date Of the Claim.
In the veteran's case, service connection was established for
plantar warts and foot fungus in a February 1970 rating
decision. The veteran was afforded a rating of zero percent
for the two conditions. The veteran filed a claim for an
increased rating for his foot disabilities in August 1989,
and in November 1989, the RO afforded separate ratings for
residuals of a plantar wart on the left foot and tinea pedis,
providing a 10 percent rating for the former condition and a
zero percent rating for the latter.
Nothing in the year preceding the August 1989 claim, either
in the form or correspondence or treatment record may be
interpreted as indicating an intention to claim entitlement
for that benefit in order to meet the requirements for an
informal claim under the regulations set forth above. Even
more importantly, there is nothing in the preceding year that
would indicate that the veteran had a tender scar on the
dorsum of the left foot. For the reasons and bases set forth
below, it is clear that the date of entitlement arose
followed the date of the claim. Consequently, the date
entitlement arose would govern the effective date in this
case, as it is the later of the two dates.
That Date That An Increase Was Factually Ascertainable.
By history, the report of the August 1990 VA examination
shows that the veteran had a one inch scar between the distal
4th and 5th metatarsals. However, there is nothing to
indicate that the scar was in any way symptomatic. On the
other hand, the February 1993 VA examination, shows that the
veteran had significant tenderness to palpation of the area
between the 4th and 5th metatarsals of the left foot.
However, tenderness was associated with neuromas, and there
was no reference to a scar in this report. Further, the
report of the September 1995 VA examination shows that the
veteran was found to have a scar on the dorsum of the left
foot; however, there was no indication from that record that
the scar was in any way symptomatic.
Accordingly, the October 1997 VA examination was the first
instance at which it was factually ascertainable that the
veteran had a tender scar warranting a separate compensable
rating. The veteran has argued that he is entitled to an
effective date from the date of his claim in August 1989.
However, for the reasons and bases set forth above, he is
advised that this claim has no legal merit or entitlement
under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994).
ORDER
An effective date earlier than October 18, 1997 is denied for
the award of a separate compensable rating for a tender scar
on the dorsal aspect of the left foot between the 4th and 5th
metatarsals.
REMAND
With respect to the claim for an increased rating for PTSD,
additional development is necessary prior to completion of
appellate action. In particular, I note that the veteran
indicated in his VA Form 9, dated in May 1999, that he was
receiving ongoing treatment for PTSD. In particular, he
mentioned medication that he is required to take daily. In
order to afford him every consideration in the presentation
of his the claim, reports of medical treatment should be
obtained and reviewed in connection with his claim for an
increased rating.
In addition, of record is a May 1999 request for VA
examination. However, no examination report follows.
Consequently, it is not apparent whether or not there was any
compliance with the examination request. Prior to completion
of appellate review, this matter should be resolved.
In view of the foregoing, the case is remanded to the RO for
the following actions:
1. The RO should take all appropriate
action to obtain information from the
veteran concerning the sources of
treatment for his service-connected PTSD,
and should then obtain legible copies of
the records of such treatment. All
evidence obtained should be associated
with the veteran's claims folder.
2. The RO should determine whether or
not a VA examination has been conducted
pursuant to the May 1999 examination
request. If the answer is in the
affirmative, the report of such
examination should be secured and
associated with the veteran's claims
folder. If the RO should determine that
no examination was completed, it should
document in the claims folder the
explanation as to why there was no
examination completed.
3. The veteran should be afforded a
current examination to determine the
current nature and severity of his
service-connected PTSD. All indicated
special studies and tests should be
accomplished.
4. The RO then should review the
veteran's claim for an increased rating
for PTSD in light of the additional
development. If the benefit sought on
appeal is not granted, then the veteran
and his representative should be provided
with a supplemental statement of the
case.
After he and his representative have been given an
opportunity to respond, the case file should be returned to
the Board for further appellate review, if necessary. The
purpose of this REMAND is to procure clarifying data and to
comply with governing adjudicative procedures. The Board
intimates no opinion, either legal or factual, as to the
ultimate disposition of this appeal.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999). The appellant is hereby notified that it is the
appellant's responsibility to report for the examination and
to cooperate in the development of the case, and that the
consequences of failure to report for a VA examination
without good cause may include denial of the claim.
38 C.F.R. §§ 3.158 and 3.655 (2000).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been
remanded by the Board and the Court. See M21-1, Part IV,
paras. 8.44-8.45 and 38.02-38.03.
MARY GALLAGHER
Veterans Law Judge
Board of Veterans' Appeals